Family Law (Divorce) Bill, 1996: Second Stage.

Today's debate is the last stretch of a long road which began in January 1993. On a day such as today, it is right to record that this Bill will remedy a deficiency in our law, and to some extent in our recognition of social reality, that has been persistent and visible for many years. Many previous Governments, for whatever reason, did not address this issue. No previous Government was able to see the issue through. I point out this fact not to criticise others but simply to underline how gratified I am that it fell to this Government, and to me as the responsible Minister, to bring this Bill before the House.

It is not our business today to refight the referendum campaign. However, I want to recall one point of principle which, as I said Second Stage of the Constitutional Amendment Bill last year, goes to the very heart of this debate. This Bill is about the welfare of tens of thousands of citizens whose lives are blighted by marriage breakdown and who remain married in the insistent eye of the law. It will enable them to put their lives in order at last and to remarry if they wish to do so.

Some commentators have recently described this Bill as a sort of last hurrah for a so-called liberal agenda, which today's debate is supposed to bring to a close. I regard this as superficial. As far as I am concerned there is no liberal agenda. Rather, there is a complex and changing set of social problems, each of which has to be addressed on its own merits. The Government put forward the referendum proposal, and now puts forward this Bill, as a way of dealing with a significant issue which has an important impact on the lives of many people.

The process which the Government embarked on in January 1993 was at times fraught and difficult, and I am very grateful to colleagues on all sides of the House who were supportive in this task, as were all those outside the House who played their part, and to my officials for their dedicated and professional assistance.

To those who took the other view, I would say that their reassurance is that there will be no easy or quick divorce. There will be no divorce for marriages in difficulty. There will be divorce only for marriages that are irretrievably at an end. The reassurance is written in the Constitution and it is reflected in this Bill. The Government will continue its strong support for the family. We bring this Bill before the House, not in isolation, but in the context of very major improvements in family laws and services in recent years.

I do not expect, and I believe that the public would not accept, any suggestion that this debate should become a competition to see which side of the House is more pro-family than the next. It would be appropriate for every member of the House to recall that a draft of this Bill, formally prepared by the parliamentary draftsman, was published and available to the people in advance of the referendum, in the Government paper,The Right to Remarry. That draft Bill was one of the basic supporting documents on which the Government sought a yes vote. It is that Bill, with merely some minor and technical amendments, which is before the House today.

The absolute prohibition on divorce which has stood for almost 60 years is no more. It was harsh, unbending and uncaring towards many persons who have experienced irreconcilable differences in marriage. It brought the law into disrepute because it was unable to address properly the position of those tens of thousands of persons whose marriage had ended, many of whom had entered second relationships and wished to remarry. There are some who would prefer to see the prohibition retained and would wish that enactment of the Bill was not possible. I appreciate their concerns but I hope that in time many people will come to terms with the fact that our law on divorce and the right to remarry gives legal options which must be available to members of society, as is the case in other jurisdictions throughout the world, many of which have a strong family ethos and cultural traditions not unlike our own.

Because divorce is an end result of marriage breakdown I understand that some people may feel uncomfortable with its reality but I understand more that everyone feels uncomfortable with marriage breakdown. It is marriage breakdown that causes the hurt not only for the spouses, but those related to them, those who know them and those who know of them. The truth is that society does not salute divorce but it must, through its laws, address the problem of marriage breakdown comprehensively.

The wealth of reform in our family laws in the past decade has been of staggering proportions compared to previous decades since the foundation of the State. In the past decade 18 Bills on the subject of family law have passed through the Houses of the Oireachtas under various Governments. No one can say that the record of this House does not demonstrate that family law has not been a priority. The various measures have been of very great significance in their own right, but if we were to single out measures which laid foundations for divorce legislation it was the 1989 judicial separation legislation, the 1992 White Paper on Marital Breakdown and the Family Law Act, 1995. The support of both Houses for and the dignified way they debated the Government's proposal for the referendum contained in the Fifteenth Amendment of the Constitution Bill, 1995, was a significant turning point. The various reforms in the family law area have meant that all fundamental issues arising on marriage breakdown are now addressed or being addressed in one form or another through legislation and administrative arrangements.

The House will be familiar with other recent associated measures, apart from the Family Law Act, 1995, which I promoted in the run up to the referendum such as the Maintenance Act, 1994 the Civil Legal Aid Act, 1995 and the Domestic Violence Act, 1996. In addition, there has been the major expansion in resources for civil legal aid, family mediation and counselling services. Other Ministers have been responsible for other important measures in the social welfare and child care area as well as the courts service. Apart from life itself, there is nothing more fundamental than the family and its protection and support. Our laws and support services demonstrate that and will continue to be reviewed and updated as necessary by this Government.

This Bill is, in many respects, the culmination of a decade of work in the family law area. Its publication, made possible by the result of the referendum, addresses the major jurisdictional and legal issues which will arise in our courts concerning the status of marriage and the duties and responsibilities of the spouses, as between themselves and their children. The Government is proud to be associated with this legislation which is modern in its approach and is intended to give our courts allnecessary power to settle disputes, with due regard for the administration of justice, in complex social and legal matters concerning the family.

Before proceeding to deal with the more important aspects of the Bill I should like to take this opportunity to mention the recent judgment of the Supreme Court in the Hanafin case. I, of course, welcome that judgment which has had the effect of clearing the way for publication of the Bill. A few points in the judgment which I should like to mention are the following. A number of the judges made clear that, having regard to two previous judgments of the High Court, the Government was justified in considering that the use of public funds on the advertising campaign was within its constitutional rights. it was noted also by some of the judges that the Government had without hesitation or prevarication dropped its advertising campaign immediately following the McKenna case. The court emphasised that there was no suggestion in the case that the advertising material placed before the people by the Government was untrue. These are important points in so far as the approach of the Government was concerned during the referendum campaign and I think it reasonable to make brief mention of them in the opening stages of debate on the Bill.

In line with what the people voted for, the main features of the Bill are contained in Part II which sets out the grounds on which a court may grant a decree of divorce. These are as prescribed in the Fifteenth Amendment of the Constitution Act, the relevant amendment of the Constitution contained therein being approved by the people in the referendum. This Part of the Bill also contains safeguards to ensure that both parties are aware of alternatives to divorce proceedings and to assist reconciliation. Part III enables the court to make various orders in support of spouses and dependent children following the granting of a decree of divorce. The orders may relate to maintenance, lump sums, property, occupational pensions and to a spouse's interest in the other spouse's estate. Part IV contains amendments to the tax code relating to income tax and capital taxes — i.e. stamp duty, capital acquisitions tax, capital gains tax and probate tax — which will ensure that couples who are divorced will not be disadvantaged in terms of our tax code. Part V includes various miscellaneous provisions relating to, for example, the courts' jurisdiction in divorce proceedings.

I turn now to the specific provisions of the Bill. Sections 4 to 8 are key provisions regarding the obtaining of a decree of divorce. Subsection (1) of section 4 details the circumstances in which a court may, in exercising the jurisdiction conferred by new Article 41.3.2º of the Constitution, grant decrees of divorce. The section, as it must, replicates the terms of the constitutional amendment which was approved by the people in the 1995 referendum. In exercising its jurisdiction in relation to divorce, the court must be satisfied that each of three specific conditions has been fulfilled, namely, that at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at lease four years during the previous five years; there is no reasonable prospect of a reconciliation between the spouses, and such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent members of the family. These conditions have already been the subject of long and detailed debate in the House on the Fifteenth Amendment of the Constitution Bill. They have been voted on by the people. They are enshrined as Article 41.3.2º of the Constitution and cannot, of course, be the subject of change other than on the basis of an amendment of the Constitution.

Subsection (2) of section 4 is of importance in relation to children. It allows the court, upon granting a decree of divorce, to give directions regarding the welfare, custody of, or right of access to a child under section 11 of the Guardianship of Infants Act, 1964, as if an application had been made under that Act. The purpose of the subsection is to streamline court procedures in relation to children which can be invoked under the 1964 Act in divorce proceedings.

Sections 5 and 6 contain safeguards designed to ensure that parties to divorce proceedings are fully aware of the alternatives to such proceedings, including the availability of mediation to effect a separation or a divorce on a basis agreed between both parties. The safeguards are also designed to assist attempts at reconciliation. The solicitors for both parties will have an obligation in law to ensure that the provisions of these sections are complied with and will have to provide a certificate to the court to this effect at the time divorce proceedings are instituted. It may be that even by the time the parties get to court they may be in a position to settle some of their differences. In this context section 7 empowers the court to adjourn proceedings either to assist reconciliation or in order to facilitate both spouses in reaching agreement on some or all of the terms of a divorce settlement. The provisions in sections 5 and 6 are similar to those which apply in separation proceedings. The purpose is to inform and encourage parties about options to settling disputes in court over matters that perhaps could be settled for the most part out of court with less cost, acrimony, resentment and bitterness and for the good of the parties concerned and their children.

The effect of granting a decree of divorce by the court by virtue of section 8 of the Bill will be the dissolution of the marriage and each of the parties to a marriage that is so dissolved will thereby be in a position, if they so wish, to marry again.

Part III of the Bill, which runs from sections 9 to 26, assigns to the court extensive powers in divorce proceedings to make financial, property adjustment, pension adjustment and other ancillary orders in a way that is designed to do justice to both parties and to any dependent members of the family. The provisions in section 9 deal with preliminary type orders that may be dealt with by the court. They allow the court, before deciding on an application for a decree of divorce, to make various orders provided for under the Domestic Violence Act, 1996, namely, a safety order, a barring order, an interim barring order or a protection order and to make custody and access orders and orders for the protection of the family home and contents.

Sections 10 and 11 are, in one form or another, concerned with the question of the maintenance of a spouse and dependent children. Section 10 allows the court to make interim-type maintenance or lump sums payments pending the determination of an application for a decree of divorce. Provision for interim lump sum payments is intended to cover cases where there may be hardship or where immediate bills have to be paid by a spouse. Section 11 provides for the making of orders for periodical payments, secured periodical payments and lump sums for the support of a spouse or dependent children. The lump sums may be ordered to be paid by instalments and to be secured.

Subsection 6 of section 11 gives important powers to the courts to order attachment of earnings at the same time as maintenance is ordered to be paid. Before deciding to make such an attachment of earnings order the spouse who is to make the payments must be given an opportunity to make representations in relation to the matter. The previous failure of the spouse to maintain the other spouse and any children would be an obvious consideration for the court to take into account. The propose of the subsection is to reduce, where possible, the need for a dependent spouse to engage in subsequent court proceedings for enforcement of maintenance.

Sections 12 and 13 are the provisions which allow the courts in divorce proceedings to redistribute property between spouses for the benefit of a spouse and any dependent children. The word "property" in the Bill, as in the case of judicial separation legislation, is not confined to the family home. It includes any form of property, the family home, a business, shares in a company and money in bank, post office or building society accounts. Section 12 provides that the court may make the order for the transfer of property from one spouse to the other or to any dependent family member, an order for the settlement of property, an order to vary for the benefit of the other spouse or a dependent family member or both any ante-nuptial or post-nuptial settlement made on the spouses, or an order extinguishing or reducing the interest of either of the spouses under a settlement of property.

Under section 13 it will be possible for the court to give one spouse the right to occupy the family home to the exclusion of the other spouse. The right may be limited in duration. It may, for example, apply for the duration of the occupant spouse's lifetime. Alternatively, the court may direct the sale of the family home subject to such conditions as the court may think proper and provide for the apportionment of the sale proceeds between the spouses concerned. In either case, the court will be required to take into consideration the need to provide proper and secure accommodation both for a spouse and for dependent family members. Section 13 also allows the court in divorce proceedings to make certain orders under existing statutes including the Family Law Act, 1995, the Family Home Protection Act, 1976, and the Domestic Violence Act, 1996.

To further ensure that adequate and reasonable provision can be made for a spouse and dependent children, section 14 enables the court to make an order for the assignment, in whole or in part, of a spouse's interest in a life insurance policy in favour of the other spouse or dependent family member or an order requiring a spouse to take out a life assurance policy in favour of the other spouse or dependent family member. These orders are designed to supplement or substitute for, where necessary, other orders in support of a dependent spouse and children.

In the Family Law Act, 1995, I made provision for what should happen to occupational pensions in the context of judicial separation and where a foreign divorce is recognised in the State. Section 15 of the Bill makes similar provision where domestic divorce is concerned.

Subsection (2) allows the court, following the grant of a decree of divorce and on application to it by either of the spouses concerned, to make a pension adjustment order designating or "ear-marking" the whole or part of the retirement benefit of a spouse who is a member of a pension scheme for payment,inter alia, to a dependent spouse or to a person for the benefit of a dependent member of the family. Such an order would, for example, have the effect of preserving for a dependent spouse an interest in the member spouse's pension benefit and the proportion of the pension benefit which would be paid to the dependent spouse and other family member will be determined by the court. Subsection (3) has a similar effect to subsection (2) in so far as a contingent benefit under a scheme is concerned. A contingent benefit is a benefit payable under a pension scheme to a member spouse's dependants where the member dies before retirement.

Subsections (4) and (5) provide that, where a court makes a pension adjustment order under subsection (2), the spouse in whose favour the order is made may apply to the trustees of the pension scheme concerned to have the designated or "earmarked" portion of the benefit "split" from the main retirement benefit to provide a separate and independent benefit for that spouse.

The remaining subsections of section 15 deal with special circumstances where, for example, after a pension adjustment order is made by a court, a member spouse leaves a scheme or where a dependent spouse dies before pension benefits come into payment. It also deals with the provision of notification to various parties to proceedings and with various technical arrangements relating to the calculation and payment of pensions benefits.

The valuation and calculation of benefits and the manner in which benefits ordered by the court are to be applied and paid will be in accordance with guidelines to be made under the Pensions Act, 1990. On Committee Stage I propose to table an amendment to allow the guidelines to be promulgated by means of regulations. That is the approach being provided for in relation to corresponding guidelines for the purposes of the Family Law Act, 1995. The House agreed that approach recently on the basis of an amendment to the Pensions Act, 1990, provided for in the Pensions (Amendment) Bill, 1995. The guidelines in each case will help to standardise practise in relation to pension adjustment orders. I take this opportunity to thank the Pensions Board and certain key figures in the pensions industry without whose expertise and advice it would not have been possible to bring forward the provisions in the 1995 Act and in this Bill.

The question of what should happen to rights of succession following the grant of a decree of divorce is addressed in section 16 of the Bill. In the context of judicial separation, it is already possible for the court to make an order extinguishing rights that spouses havevis-á-vis each other. Where a couple divorce, the parties being no longer spouses will no longer have rights of succession. In compensation for that loss the court will be able to make provision for a spouse by using the various financial and property adjustment provisions in sections 11 to 15 of the Bill. Where at the time of granting the decree of divorce it is not possible to make adequate provision for a spouse, and that spouse has not married in the meantime, section 16 provides that the court may order that financial provision be made for him or her out of the deceased spouse's estate. In considering whether to make an order under this section the court must have regard to any lump sum payments or property or pension adjustment orders made in favour of the applicant, or any devise or bequest made by the deceased spouse to the applicant spouse. The provision which the court can make under this section, with any lump sum payments or property or pension adjustment orders already made, must not exceed in total the share, if any, of the applicant in the estate of the deceased spouse under the Succession Act, 1965, to which the applicant was entitled or would have been entitled if the marriage was not dissolved.

Section 17 provides that where a court makes a secured periodical payments order, a lump sum order or a property adjustment order it may, additionally, at any time thereafter make a further order for the sale of any property in which either spouse has a beneficial interest. The order for sale may include provisions in relation to the manner and time of sale and disposal of the proceeds of sale. The power to order the sale of property may not be exercised to interfere with a right to occupy the family home conferred by virtue of Part III of the Bill. Neither will the power apply in relation to the family home where either of the former spouses, following remarriage, lives with his or her current spouse.

Important criteria are contained in section 18 for the making of court orders under Part III in support of spouses and dependent children. The courts will have flexibility, on the basis of the circumstances of each case before it, to determine an equitable division of income and property. Subsection (1) sets down a general criterion that provision must be made for the spouse and any dependent member of the family as is proper having regard to all the circumstances of the case. Subsection (2) contains more specific criteria in relation to such matters as a spouse's income, earning capacity, property and other financial resources, likely future financial needs and obligations, age and conduct of the spouses and accommodation needs. The court must take into account any contribution made by either spouse to the financial and other resources of the other spouses and any contribution made by either of them by looking after the home or caring for the family. Subsection (4) sets out specific criteria to which regard shall be had by a court in deciding whether to make an order in relation to children which take into account financial and accommodation needs and other matters.

Provision is made in section 22 for the situation where a couple seeking a divorce have already obtained a judicial separation. It is provided in the section that orders in relation to the separation will be continue in force unless the court orders otherwise, notwithstanding the grant of a decree of divorce. The remaining section of importance in Part III is section 20 which lists the orders under Part III which, on the application of either spouse, can be varied, discharged or suspended by the court taking into account any change in circumstances. Variation orders are also subject to the criteria for the making of orders which are set out in section 18.

Part IV of the Bill, which runs from sections 27 to 32, deals with amendments to the tax code in respect of both income and capital taxes — namely, capital acquisitions tax, capital gains tax, probate tax and stamp duty — which will apply to divorced couples in this State. Section 27 is a standard provision in family law legislation and provides that payments of money made pursuant to an order under the provisions of the Bill shall be made without deduction of income tax. A pensions adjustment order does not come within the ambit of this section.

Section 28 provides that, in certain circumstances, couples who obtain a decree of divorce may, similar to separated couples, opt for joint assessment for income tax purposes. To avail of the provision, both of the parties to the dissolved marriage must be resident in the State for the relevant year of assessment and neither spouse must have remarried. The net effect of the section is that, through opting for joint assessment, where one party to a dissolved marriage is paying enforceable maintenance for the benefit of the other party, the party making the maintenance payment, and not the recipient, will bear any tax referable to the maintenance payments. If the recipient has no other income, the paying party will be granted the personal allowances and tax bands appropriate to a married person. If the recipient has other income, the tax assessed on the parties will be apportioned between them but the tax referable to the maintenance payments will still be borne by the payer.

Sections 29, 30, 31 and 32 of the Bill exempt property transfers between former spouses on foot of a court order governing a divorce settlement from capital gains tax, capital acquisitions tax, probate tax and stamp duty. In effect, any property transfers related to the divorce will be exempted from all capital taxes, provided that they are covered by a court order. However, in relation to any subsequent property transfers not consequent on the divorce, the divorced couple will be treated as strangers for capital gains tax, capital acquisitions tax, probate tax and stamp duty purposes.

Part V of the Bill deals with court jurisdictions and the power of the courts to seek social reports under arrangements with health boards and the probation and welfare service on issues affecting the welfare of parties to divorce proceedings including children. As in the case of judicial separation, the Circuit Court will be the main court to deal with applications for divorce. Sections 39 and 40 of the Bill contain minor amendments to the Maintenance Act, 1994 and the Family Law Act, 1995 some of which are of a drafting nature and others still are consequential on the introduction of divorce.

I have made clear to the House on a number of occasions that the position of children under our laws as they stand is of special importance and that constitutional and statutory provisions and administrative policies reflect that. Recent legislation reflects that policy. Each of the 18 Bills passed since 1986, which I referred to earlier, relate to children in one way or another. I do not imply that nothing more needs to be done. This Bill has strong protective and support measures in the interests of children based on experience of operation of existing laws. The extensive provisions which already exist in relation to children are continually being reviewed and will be updated as necessary under the Government's programme of renewal. As I mentioned earlier, as part of the legislative programme in hand in my Department, progress is being made on new measures to update the law on guardianship and in relation to the evidence of children. I propose to introduce those measures as quickly as possible and to continue the pace of social reform as may be necessary in the family law area.

The introduction of divorce will place extra demands on our courts, on legal aid and on counselling and mediation services. Health boards will be affected because of the requirement on them to provide social reports if called upon to do so by the courts in divorce proceedings. The probation and welfare service will be similarly affected. The House will be aware of the strategic plans being developed in recent years in each of these areas to meet the demands of the growing area of family law cases. Significant resources have and are being provided in all of the areas concerned. The Estimates of the Departments concerned are testimony to that. In so far as my own Department is concerned the record in relation to funding of legal aid, mediation and counselling should not leave any Member of the House in doubt about my commitment and that of the Government to those services. That commitment will extend to dealing, as necessary, with the demands of a divorce jurisdiction. Other Ministers with other responsibilities in the relevant Departments of Justice, Health and Social Welfare will continue to have the same commitment in relation to the various social services in support of families.

I look forward to debate on the Bill. I hope I have helped the House to put the Bill in context and to elucidate and inform on the more important provisions. The provisions are not, for the most part, unfamiliar because they in substance correspond with provisions in the Family Law Act of 1995, which we discussed several months ago. However, this Bill provides for the first time in the history of the State for the exercise by our courts of jurisdiction to grant decrees of divorce. On its enactment, it will give effect to that which the people themselves have enshrined in the Constitution, the right of persons in certain irreconcilable circumstances to have their marriage dissolved by our courts and to remarry, if they so wish.

The people have spoken on one of the most difficult and important issues we have faced as a society. They gave their decision in the recent referendum and the Supreme Court upheld and confirmed the result.

At Fianna Fáil's request and in line with the proposals in the White Paper published in 1992, a draft Family Law (Divorce) Bill was published immediately before the referendum so that the legislation which was likely to follow would be on the table in advance of the decision. We have carefully examined the Family Law (Divorce) Bill, 1996 and we are satisfied that it is faithful to the draft Bill published in advance of the divorce referendum and that the protections and safeguards demanded by Fianna Fáil have been included. On this basis we will not oppose Second Stage of the Bill. The Government has included in section 39 minor amendments to the Family Law Act, 1995, updated section 15 to reflect the text of section 12 of the Family Law Act, 1995 regarding pension adjustment orders and a new provision, section 4, to allow for the recovery of maintenance due to a party to an Irish divorce who is living abroad.

We appreciate the concerns of the substantial minority of the people who voted against the referendum and we reiterate our commitment to the family and to supporting all families in Ireland socially, economically, financially and legally. In the spirit of our constructive approach to this important issue, we will put down amendments on Committee Stage. We will seek to improve the provision for counselling, mediation and professional support services for families in breakdown situations. We will also seek provision for a modern family court system and for the recognition of the key part which voluntary and community-based organisations can play.

In the context of the proposals to change the Constitution, we were given assurances by the Government that the proposals contained in our five-year strategic action plan would be implemented. These were designed to support families and especially to protect children from the downside effects of marriage breakdown or divorce. We will insist that these measures to support families are put in place in parallel with the passage of this Bill through Dáil Éireann. These essential supports are urgently needed and must not be left on the long finger by the Government. There is an obligation on all parties in the House to be faithful in word and in deed to the promises made before the referendum. The issues at stake are far too important to our society to be neglected in the aftermath of the referendum decision. We will insist on the Government meeting the commitments it made in the course of the referendum debate. The measures needed must be included in some instances in the legislation and in others in parallel with its passage through the Oireachtas.

The tradition of the family in Ireland has always been one of our strongest national characteristics and has focused on support for parents and their children. We see daily the effects of the increasing pressures on family life and the supports needed to ensure families are adequately maintained and a secure environment is provided for growing children. We have never been exclusive in the way we describe the family. Irish communities have always recognised families as all-embracing. Generations of children have grown up in extended families with grandparents and elderly relatives living in a caring environment. While families are smaller today, that caring tradition continues with families increasingly taking an active part in the development of their local communities.

Our Constitution is clear on the subject of the family. Article 41.1.1º describes the family "as the natural primary and fundamental unit group of Society". The Constitution also pledges to guard with special care the institution of marriage in which the family is founded and to protect it against attack. For the vast majority of people the concept of family is based on a husband, a wife and children. Approximately 500,000 families receive child benefit, the vast majority of whom fit that concept while some 17 per cent of current births are outside marriage, but there are thousands of families who for one reason or another have been left without the support of a partner. Increasingly there are older families consisting of carers and the charges and families whose members have special needs.

Today's understanding of families emcompasses a wide set of relationships. Notwithstanding the commitment to the family based on marriage the State has never been exclusive in the way it caters for families. In our society generations of children have grown up in extended families and while families are smaller today that caring tradition continues. Our understanding of the concept accepts families as all-embracing and all-inclusive which covers a wide range of structures and functions and recognises, supports and empowers families in their many diverse forms.

In today's society the increasing pressures on family life are all too apparent. Our traditional view of families is facing challenge. Providing the necessary supports, ensuring that families are adequately maintained and that a secure environment is provided for growing children are all challenges faced daily by the State and by voluntary organisations.

How do we best support the basic unit of society? In the course of the divorce debate the Taoiseach and the Minister gave assurances that the Government would implement the provisions of our five year strategic action plan designed to support the development of strong families who can rise to any challenge and who cherish their independence. They want to make their decisions and to provide for their development. In truth families are the smallest democracies in the world. We must make sure that for every difficult situation facing families there is a supportive response. I will give the Minister the quotes later as his officials do not appear to have them.

Our social welfare services embrace the wide-ranging definition of the family adopted by the United Nations. We have left no one out. We are improving and simplifying our social welfare system. The complexity and variety of people's lives demand a wide range of supports covering a variety of family situations.

Regarding families and the incidence of marriage breakdown, the issue of divorce and remarriage was a difficult one for our society. Nevertheless we decided in favour of the introduction of civil divorce. We have a strong family tradition on which we place great value. More than 95 per cent of marriages here are still recorded as intact. That compares favourably with more than 80 per cent in the UK and more than 70 per cent in the USA, but the rate of breakdown and separation has accelerated here. The breakdown of new marriages in 1994 reached the alarming rate of one in six. The problem has been growing at an accelerating pace in recent years. In the 1986 census it was revealed that the marriages of 38,600 had broken down. By 1993 that figure had grown to 75,000. Allowing for the fact that breakdowns appear to be occurring at the rate of about 2,700 per annum, there are by now some 45,000 broken marriages here. Of those it is fair to assume that at least 30,000 have been broken down for four years or more.

Many of those who would be entitled to apply for a divorce once the Bill is law will not wish to apply. However, it is only realistic to project that some 10,000 to 15,000 of those will wish to obtain a divorce as soon as that possibility exists. This will mean that the courts will be faced with up to 15,000 applications for divorce in the near future. These will not be quickpro forma applications. The requirement in the constitutional amendment, to which the Minister referred, that the court must be satisfied that, “[c] such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses or any dependent members of the family”, means that the court will have to inquire into the circumstances of the spouses to be satisfied that adequate provision has been made for dependents. Even though the courts may have granted judicial separations, all the cases will have to be re-examined in the light of present circumstances so that the court can be satisfied that adequate provision has been made in compliance with the Constitution. For those who obtained separation before the enactment of the Judicial Separation Act, 1989 this will be of great importance because the range of reliefs available then was considerabley inferior to the reliefs that became available under the Judicial Separation Act, 1989.

At present the courts deal with about 2,000 applications for judicial separation per annum. Because there will be a four year period from separation until a divorce can be granted, it will be necessary for spouses whose marriages have broken down to continue to apply to the courts for reliefs, under the Judicial Separation Act, 1989, such as maintenance, custody of and access to children, barring orders, property adjustment orders and exclusive occupation of the family home orders. It is likely that the number of applications under the Judicial Separation Act will continue at least at the present level.

We now have a significant number of people who want to remarry. The key issue for society was how to respond to a growing number of our citizens who demanded the right to remarry. There was also a demand from others for divorce so that they could bring to an end an unhappy and acrimonious marriage and totally end a broken relationship.

We recognised that in providing a right to remarry additional problems could arise by virtue of remarriage over and above those which arise at present from marital breakdown. We were already dealing with the disharmony and damage which results from the breakdown and separation. We must now address in a calm, considerate, careful and practical way the extra difficulties which can occur as a result of remarriage. Most of the problems existed in the context of legal separation and second relationships. The extra challenge will focus our minds and actions on the supportive work in which we should already have been engaged in tackling the problem of marriage breakdown.

In supporting the recent referendum, we pressed the Government to put in place a five year strategic action plan to provide solutions for the downside aspects of marriage breakdown and divorce. This plan included the enhancement of the status of marriage. We need to address the declining status of marriage, particularly in young people's perceptions. The number of marriages in Ireland in 1986 was 18,573 whereas by the year 1994 that figure had declined to 16,297. In practical terms, lack of a job, inability to get a house and or sustain a mortgage has a devastating effect on those wishing to marry and puts marriages under extreme pressure in the early years.

We also face important changes in the workplace. Increasingly both parents are now likely to continue working. The arrangements in the workplace and in regard to child care need to keep pace with these developments if the status of the family is to be maintained. Ireland still has the lowest rate — 35 per cent — within the membership of the OECD of women working outside the home which contrasts with 74 per cent in Denmark and 64 per cent in the United Kingdom.

The system of taxation should enhance and support families with children, especially those with lower incomes. As part of the current programme Fianna Fáil requested the Minister for Finance to establish a review committee to advance proposals for the development of our tax system to that end. The Joint Committee on the Family was established to promote this work. The Commission on the Family is preparing comprehensive proposals and recommendations and increasing awareness of the family and its potential. The European-wide observatory to monitor developments on family policy is another valuable resource for EU member states.

The system of taxation should enhance the family and support those with children, especially those on lower incomes. Discrimination against the family arises in a number of ways. For example, taxation can bear more heavily on families, with the effect of discouraging their establishment. Throughout the European Union there is great concern at the decline in fertility rates and family size. Families with children are heavy consumers and indirect taxes like VAT can bear more heavily on them as a composite family unit. A combination of tax, social welfare and secondary benefits can further discourage maintenance of the family unit.

For the recent report of the Joint Committee on the Family it is clear there is no evidence of State bias within our taxation system in favour of families with children. For example, couples with one or three children were found to be net losers compared with single people or couples, even when benefits were taken into account. Increases in child benefit and or income tax concessions in favour of children could help offset this disadvantage for families by providing positive, tangible evidence of State support for the family.

While our income tax system favours married couples who, through joint assessment, benefit from the transfer of unused allowances and tax bands, widows and other lone parents do not benefit to the same extent despite the fact that the economic demands of supporting a family are similar. There is a short-term bereavement allowance which is helpful but lasts for three years only. Yet our constitution recognises the family of a widow or widower as a family based on marriage and entitled to special recognition and support. Similarly, there are not any allowances or reliefs available for child care whether that care is provided by the parent in the home or my employing child minders. Consideration could be given to the provision of a targeted voucher scheme to support child care and strengthen the position of the family.

These are some of the issues which must be addressed to help families under economic stress. The State must do its best to protect and nurture the core family values that underpin our society, to which the Minister referred.

It is essential to have a skilled professional counselling service throughout the country adequate to meet the demand. The need for counselling is met at present by the voluntary organisations which, despite very limited resources, have built up a happy professional service. These organisations should receive funding at a level commensurate with providing a service to all in need of it.

It is essential that counselling services be availed of by all those whose marriages are in difficulty. In the course of the debate in this House on the referendum Bill we sought and received an assurance from the Government that a skilled, professional counselling service would be made available nationwide. In the short and medium term the only practical way to ensure counselling is made available to all those experiencing marriage difficulties is to support the development of this service through the voluntary organisations. The Government will have to make much greater funding available to them so that they can continue to develop their service. It was with some dismay I learned recently that the funding previously provided by the Minister for Social Welfare for the counselling service provided by the Irish Countrywomen's Association was withheld this year. It should be immediately reinstated by the Government. On returning to Government, Fianna Fáil will ensure adequate resources are made available for these essential services following discussions with the voluntary organisations. We must always remember that good professional marriage counselling is invaluable in preserving marriages that might otherwise break-up. The track record of these services is clearly acknowledged as is the fact that the State can rely on them as a sure means of saving a great number of marriages.

It is essential to ensure that the counselling service is used by all those experiencing problems in their marriages. It would be a great tragedy if the opportunity to resolve marital disharmony and preserve families intact was neglected or ignored because one or both of the spouses focused solely on separation or divorce. The Bill should contain a provision placing an obligation on the spouses initiating a separation or divorce process to participate in counselling, proof of which could take the form of a certificate from the counselling service, or other similar document.

The consitutional amendment obliges a court to be satisfied that there is no reasonable prospect of a reconciliation between the spouses. We recognise that obligatory counselling may not be appropriate for couples after long-term separation or in the case of a spouse who has been abandoned. Exceptions to obligatory counselling would need to be specified. However, we must seek to develop supportive counselling structures to ensure every possible opportunity is provided to avert marriage breakdown and divorce.

There must be a positive programme of financial support for less well-off families experiencing marital disharmony. The State supports for families under stress, including household budgeting, money advice centres and personal development courses, are valuable in tackling the root causes of tension. The problem of inadequate housing, in particular, should be examined within the context of its being a contributory factor to marital difficulty. In addition, abuse of drugs and alcohol are significant causes of marital disharmony and crime. Programmes must be devised and implemented to tackle these persistent social problems. Unemployment is clearly identified as a source of acute marital difficulty. This should motivate the Government to introduce programmes to help long-term unemployed parents get back to work.

As a corollary to raising the age of marriage to 18 and the requirement for three months advance notice it is most important that young people be educated and prepared for marriage as a lifelong relationship. Perhaps it could be included in the schools' curricula. Children and young people generally should learn about the importance of marriage as a source of well-being for most adults, and of its importance for the stability and general welfare of society; they should be educated to perceive lifelong marriage as a very desirable status for life. We need better support and "time out" for parents, who care for children and people with disabilities in the home. A start has been made in the social welfare area, but this should be followed by a system of social welfare credits which recognise the value to society of such work in the home.

To help families, particularly families where husband and wife are working, to deal with marital difficulty, legislation should be introduced to provide for "time out" or leave, in situations where one or both parents need to devote time to preserving the marriage. Periods of leave of this kind might be very appropriate while the couple are engaged in counselling.

Where all efforts to save a marriage fail and separation and-or divorce is taking place, it is essential that there is available throughout the country a skilled professional mediation service, to minimise the harmful emotional and psychological effects on children, and to minimise the emotional trauma suffered by the parents.

Such a service should be attached to the courts. A skilled, professional mediation service would enable spouses in marital disputes to reach agreement concerning children, access to children and maintanence and distribution of family property. This would reduce or even eliminate bitterness and disharmony between the spouses, thereby reducing the ill effects of the breakdown on the children. It would also greatly reduce the amount of court time taken up by individual cases.

For this to work it is essential that all spouses in marital dispute who have gone past the possibility of reconciliation, should be obliged to engage in mediation before they could apply to the court for divorce. It would be necessary to amend the Bill to make provision for this and we will put down appropriate amendments on Committee Stage.

The Government must set up and fund a mediation service throughout the country. Little has been done to establish the service on a countrywide basis. So far mediation has been available only in Dublin and recently in Limerick. The funding to date of £300,000 per annum, is wholly inadequate to meet this important need.

In making the decision to support the referendum we recognised and accepted that marital breakdown and divorce could have detrimental effects on children. Research has shown that children can suffer significant emotional and phychological harm in the short-term during marital conflict through separation and-or divorce and remarriage. Some children also suffer serious long-term social disadvantage and financial hardship.

We supported the referendum on the basis that these downside effects are recognised and addressed. The first step in that direction should be that real protection for the interests of children will be built into this Bill and the welfare of children in this context must be given due status and consideration.

In the referendum debate, Fianna Fáil conducted an exhaustive study of the effects of marital breakdown and divorce on children. It was apparent from that study, as shown in numerous other investigations, that marital breakdown and divorce have adverse effects on children.

To ensure adequate protection for children, there must be a statutory officer whose job is to ensure that the interests of children are vindicated by the courts in disputes between parents. Thus we proposed that a commissioner for children would be attached to the courts who would be responsible for highlighting to parents the needs of children in marriage breakdown and divorce and for pressing the needs of children in court where necessary. It would also be helpful if parents had to go through an information session on the short and long-term effects on their children of marital breakdown and divorce, and to advise them on the legal implications of guardianship, custody and access for themselves and their children and of the potential financial cost of separation and divorce.

Legal aid must be readily available through the Legal Aid Board for those who are less well off. The recent increase in funding the Legal Aid Board to £6.5 million was to spread the service throughout the country and fund several new law centres. These centres and their legal staff are already stretched to capacity coping with existing litigation. The introduction of divorce will undoubtedly put a huge additional demand on the free legal aid system, for which the Minister has made no provision, and this will have to be remedied in the Estimates later this year. Otherwise divorce will be the exclusive preserve of the rich.

It is vitally important to prepare for the introduction of divorce so that when legislation is passed it is backed up by an administrative and legal system that can cope with the changes involved. At present our legal system is creaking under the strain of the volume of family law cases in the courts. Despite the best efforts of the judges, lawyers and court officials who work in family law, our system is under-researched and underresourced with two few judges available to hear all the existing cases and too few court officials to handle the vast amount of paperwork. Consequently we have waiting lists averaging a year to 18 months, and when a couple get to court they are faced with facilities that vary from merely overcrowded to positively inadequate.

Courthouses rarely have enough private consultation rooms or comfortable waiting rooms; often during winter there is no heat. Imagine what it must feel like trying to talk to one's lawyer about the custody of children in an open hall with dozens of other people milling around and one's estranged spouse watching from across the room. People must be treated with dignity and respect by the legal system. We cannot tolerate chronic delays and poor facilities.

The introduction of divorce will add to these problems. It is estimated that some 10,000 or 15,000 couples may apply for a divorce. This will immediately swamp the family law system. In the medium-term we should bear in mind that even though a couple will only become eligible for a divorce after four years' separation, they may well need access to the courts during that time to sort out immediate issues of custody, access and maintenance that cannot wait. Legally, marital breakdown will become a two-stage process which will represent a significant increase in the existing volume of work.

The Circuit Court will deal with divorce cases and there is little doubt that it will not be able to cope with the level of applications that will arise. The Minister for Justice announced the appointment of seven new Circuit Court judges to deal with the increase in the number of all types of cases that the Circuit Court is required to hear. It must be borne in mind that the jurisdictional limit of the Circuit Court in civil litigation was doubled in 1991 from £15,000 to £30,000, resulting in a huge increase in the amount of civil litigation going through it. It is to meet that need and the increases in cases under the Judicial Separation and Family Law Reform Act, 1989, that additional circuit judges are urgently required. In reality no provision has yet been made or is even planned to deal with the huge number of applications for divorce that will come to the Circuit Court in the next few years.

During the referendum campaign, Fianna Fáil drew attention to these issues. As part of our five year strategic action plan, we called on the Government to introduce in conjunction with divorce three new Circuit Court judges to deal exclusively with family law; upgrade the courthouses to provide private consultation rooms and at least two waiting rooms in each; and a separate family law court in country areas as currently exists in Dublin.

Since then the House passed the legislation needed to appoint more Circuit Court judges, but despite this the Government has not yet made the appointments. Why? There are family law cases ready to be heard but no judge to hear them.

More recently, the Report of the Law Reform Commission on Family Courts made many constructive proposals for the improvement of the family law system. Some of these proposals echo Fianna Fáil's concern with the accessibility and quality of the family law system. The Law Reform Commission points out that all administrative supports must be properly researched. Their proposals include an information centre attached to the Family Court to provide objective information on alternatives to litigation and the implications of separation and a pre-trial case management procedure to review cases before they come to court. These measures will narrow down the issues in dispute and, it is hoped, encourage settlement and a professional mediation service. All these support services will be essential if the court system is to cope with the introduction of divorce. These supports must be put in place now.

The recent Law Reform Commission Report on Family Courts examined the processes and procedures whereby family law disputes are resolved and remedies obtained. It is also considered the best type of judicial court structure to deal with the different matters which fall under the general heading of family law. It sets out the ideals and objectives of a good family court system, including access and speed; avoiding conflict and hostility; supporting family ties; promoting agreement and co-operation; respecting dignity and fundamental rights and protecting children; addressing inequality; links with other family support services and cost effectiveness. These reforms are urgently needed and have the support of all sides of the House.

In conclusion, this Bill provides the protections and safeguards which Fianna Fáil insisted on in the event of the people deciding to introduce divorce in the referendum. It is faithful to the draft Bill published before the referendum at our request. Accordingly, we are not opposing Second Stage.

We appreciate the concerns of a substantial minority of the people who voted against the introduction of divorce. We have stressed our commitment to the family and to supporting all families socially, economically, financially and legally. In the short time available we have set out our views on some of the main issues. We will put down amendments on Committee Stage in a constructive attempt to improve the provisions where possible. In particular, we will seek to improve the provisions for counselling, mediation and professional support services. We also want to see a modern family court system — we believe that this is the time to get it — and clear recognition of the key role which the voluntary and community-based organisations can have.

The introduction of divorce will provide a major challenge for all the services involved. We were given assurances by the Government that the proposals in our five-year strategic action plan would be implemented. We will be insisting that these measures to protect children and support families should be put in place in parallel with the passage of the Bill. This will require extra resources but these are essential at this critical time. If the Government does not honour the commitments made, I assure the House that on its return to office Fianna Fáil will implement these proposals.

The introduction of this Bill means that we are almost at the end of the long and sometimes tortuous road which will lead to the possibility of remarriage for those people who have been trapped in marriages in name only and whose relationships have broken down. This concerns many thousands of people. The Minister referred to the fact that some commentators have recently described this Bill as a last hurrah for a so-called liberal agenda which this debate will bring to a close. I agree with the Minister's analysis that this is a superficial reaction to all we have gone through over the past few years. This Bill is trying to establish the right, which the Progressive Democrats have always described as a civil right, to remarry. The introduction of the divorce Bill recognises that.

The recent referendum was, in football jargon, a very close result — it was as close as last night's football match. A degree of caution is urged on us because of that. However, I do not accept the view of certain commentators that in some way Irish society is polarised on the liberal agenda or the right to remarry and that the result of the referendum showed this. In the referendum campaign the people thought long and hard about the implications of the introduction of divorce. Some people argued, in defence of the many thousands trapped in marriages from which they wanted to escape, that they should be given the right to remarry. It was significant that those people outside the political arena who called for a yes vote on the referendum described it as the right to remarry campaign. The Minister has often cited the 18 pieces of legislation which have led to this debate and he is, of course, correct in saying that thecorpus of legislation is more or less in place, apart from this divorce Bill which grants the right to remarry.

I am glad the refrendum turned out as it did. Political parties should not have to compete between themselves to find out which is more concerned about family values or is more family oriented. Regardless of divorce, we should always have been concerned about marital breakdown, the needs and rights of children and the support that families deserve. This is even more true in our more complex society today.

I congratulate the Minister and his Department for introducing the Bill which addresses almost all aspects of the divorce issue. It is a source of great regret that I can only say we are almost at the end of the road and that this Bill addresses almost everything, but that is the true position.

When the Bill has been passed and when people consult their legal advisers about their entitlement to apply for a divorce, it will come as a shock to many to be told that this is still by no means clear. For people whose marriages have broken down and who have not been living in separate premises from their spouses for the requisite period, there is still a major doubt as to whether they have been living apart and are thus entitled to a divorce. That will lead to further delay.

In his speech on 27 September 1995 on the Second Stage of the Bill to amend the Constitution, the Minister stated:

The term "living apart" is used in the Judicial Separation and Family Law Reform Act, 1989, and it is also a familiar term in many other jurisdictions where it has been held that this phrase will clearly cover where the spouses have physically separated and are living in different places. The case law also states that where domestic life is not shared, it is possible for there to be two households under the one roof.

The Minister also said, "The term "living apart" has a clear and settled meaning in law and I am satisifed that the courts will follow this meaning in a divorce context". While the courts may ultimately interpret "living apart" in the way the Minister contends — I sincerely hope they do — I cannot accept his contention that phrase has a clear and settled meaning in law. It was a little disingenuous of the Minister to refer to the Judicial Separation Act to support his contention because section 2 (3) (a) of that Act specifically defined what "living apart" meant.

We had some debate on that at the time but it is still unclear. We would ordinarily clarify this issue by amending this Bill and including a similar definition of "living apart", but that is not an option here because the entitlement of this House to legislate for divorce for couples who have lived apart derives from the constitutional amendment and the function of interpreting the Constitution belongs to the Judiciary, not to this House.

When the Bill to amend the Constitution was introduced in this House, the Progressive Democrats argued that the House was abdicating its responsibilities by leaving it to the courts to say what "living apart" meant and we warned that the smooth operation of divorce procedures could be further delayed pending the interpretation of that phrase by the High Court and then the Supreme Court. If the courts accept the Minister's interpretation, the delay will be at least a year and if they do not — it is not certain they will — we could be facing another constitutional amendment, from which God save us. There is nothing the Minister or the House can do about that now but, of course, there are a number of other things we can do to ensure a system of divorce and family law generally operates smoothly and with the minimum of distress to those involved.

For the sake of the many thousands of people who have been waiting anxiously for the decision of the Supreme Court following the referendum, I would like to be able to say I am completely satisfied with what is about to happen. I regret I have to sound a somewhat negative note. In its recent report on the family law courts, the Law Reform Commission referred to what it described as the negative ethos of the court system as it currently operates in the area of family law. This was described as follows: instead of concentrating on the empowerment of individuals to resolve their own family disputes by encouraging negotiation and agreement, the emphasis of our systems with its concentration of adjudication is on solutions which take control away from the participants. They say a humane system of family law is one which encourages the responsible resolution and management of disputes, wherever possible, by members of the family themselves.

Judicial intervention is, of course, necessary to prevent exploitation or abuse between family members. The ideal of empowerment should not blind us to problems of inequality which may arise in a system of private ordering. This apart, it is perhaps time to consider how reforms in our legal process may help in the process of family empowerment.

One of the key recommendations of the Law Reform Commission was the establishment of a system of regional family courts based in 15 centres around the country, operating as a separate division of the Circuit Court and presided over by judges nominated to serve for a period of at least one year and assigned on the basis of their suitability to deal with family law matters. The Government has made some efforts to increase the number of judges, but it is not sufficient, as we have heard and to establish the principle of judicial training, but nothing has happened yet. If it did happen it would be a welcome start. A huge amount remains to be done and it is disappointing that this Bill does not take on board the reforms suggested by the Law Reform Commission.

Under the family law legislation brought to this House in February 1994, the Circuit Court was to be called the circuit family court but at the time everybody regarded that as a joke. There is still a severe shortage of judges, particularly those with a background in family law. Due to the lack of facilities in courts, we have the bizarre situation of consultations and negotiations on the side of the street to avoid being heard by the other side. This takes its toll on family litigants already experiencing intolerable physical and emotional pain as a result of delays.

The Law Reform Commission consultation paper on family courts recommended securing that certain requirements of substance are met as follows: (a) that the accommodation and setting of the court is appropriate — we know in so many instances that it is not; (b) that adequate time is made available for family cases — we know that in some areas a day is set aside for family law cases but there are literally dozens of cases waiting and there is not sufficient time to hear them all and (c) that judges who deal with family law cases are nominated to do so on the basis of their aptitude for such cases.

I recently asked the Minister for Equality and Law Reform to advise the Minister for Justice of the view that judges who are appointed should have a background in family law matters. I do not know if he has given further thought to my request. It is very important that judges should have some degree of expertise and knowledge of this area. The Minister, at the time, of course replied that any judge who is appointed is very well experienced in many matters.

It is important that the judge dealing with family cases should have some knowledge of family law because it is so sensitive and particular. The Law Reform Commission paper recommends that costs be kept to the necessary minimum. Deputy Woods has said that divorce will be the prerogative of the rich and this, unfortunately, may come to pass. The recommendations of the consultation paper, unfortunately, are not being met.

In a more technical sense, it is important that rules of court be drawn up in advance of the commencement date of the provisions of the Bill so that the same procedure will apply throughout the country. In the case of the Judicial Separation and Family Law Reform Act, 1989, which came into force in October 1989, the rules of court for the Circuit Court did not come into operation until August 1991. In the absence of such rules each Circuit Court had to devise its own rules of procedure. That type of inconsistency is very undesirable.

Another interesting recommendation of the Law Reform Commission was that each of the regional family courts should have attached to it a family court information centre with responsibility for providing impartial, objectively presented information relating to the possible alternatives to litigation, the implications of separation, the process of the courts and the availability of support services. It is an excellent idea. While the Bill, like the Judicial Separation and Family Law Reform Act, obliges the solicitor to inform clients of the availability of mediation services, there must be a danger that in many cases this will be only a ritual to be gone through. While mediation as a concept has much to recommend it, I know we do not have a sufficiently comprehensive service to meet the level of demand which can be envisaged. We need to establish a regulatory regime involving accreditation and recognition of training qualifications if we are sincere about shifting family disputes from the courts to mediators.

We must again restate the aims of the Judicial Separation and Family Law Reform Act, encouraging marriage counselling and mediation for separating couples. In any reform of the family law system, there must be an adequately resourced family law division in which psychologists and lawyers could work together with the children's welfare as their main priority. Another approach entirely — this seems to have been overlooked in the debate — is the antenuptial agreement. Before committing themselves to marriage, the parties agree the principles on which property would be divided in the event of a judicial separation or divorce. The great advantage of such agreements is that they would have been concluded in a much more reasonable atmosphere than that which attends most post-break-down negotiations and might help to reduce the feeling common to both spouses on the breakdown of marriage, that the other spouse is trying to cheat them out of their proper entitlements.

I ask the Minister to explore the possibility of encouraging such agreements but also of establishing a regime which might exclude certain matters from those type of agreements. For example, you would not like to see an agreement which precluded one spouse absolutely from claiming anything from the other spouse.

If the new regime to deal with marriage breakdown as established by this Bill and the Acts of 1989 and 1995 is to work properly, we will have to establish a realistic level of funding for legal aid. Experience shows us that in the absence of a proper legal aid system many family disputes have been resolved through the rather blunt instrument of the barring order. That is a particularly unsatisfactory way of trying to resolve disputes especially when children are involved.

Another area that could be looked at is the enforcement of maintenance orders made under this Bill and other legislation such as the Family Law Act, 1995. There is a particular weakness in enforcing orders against people who are self-employed or otherwise not in regular salaried employment as attachment of earnings orders will not be made in these cases. I wonder if it is possible to bring in a system whereby those whose earnings ar not amenable to an attachment of earnings order would be obliged to pay their maintenance obligations by direct debit.

Perhaps there are many other Deputies who have gone through the hoops in trying to have maintenance orders enforced and I am aware of heartbreaking stories of women who are pauperised, but over the limit for entitlement to legal aid, having constantly to pursue their spouse through the courts. The courts recognise that they have a case, orders are made, the orders are reneged upon and the vicious circle starts all over again. We must address the area of enforcement of maintenance obligations and take a much more proactive approach to it. I have written to the Minister and his colleague, the Minister for Justice, to see if women in particular can be accommodated. Those deemed to be over the limit in terms of entitlement to free legal aid are living on their wits, just about surviving and in many cases just trying to keep up appearances. They are often psychologically damaged. In relation to marriage breakdown this is a hidden cost. The issue badly needs to be addressed.

Another aspect to be considered is whether there is need for separate representation, although not necessarily legal, of the interests of the child in family law proceedings. This could be supplied for instance, by social workers. The compiler of social reports might usefully be able to contribute to the proceedings in other ways.

Some sections my require amendment. Under section 12 (1) (c) which deals with property adjustment orders a court will be empowered to vary any pre or post-nuptial settlement, including a will. There may be a situation where, for example, a parent or grandparent leaves a lump sum or income from a lump sum or property to the spouses but provides in the will that if the spouses separate or divorce a particular spouse is to retain the benefit. Does the Minister envisage that a court will be able to vary the terms of such a will and, if so, is he satisfied this will not represent an unconstitutional interference with the property rights of the testator?

Section 13 (1) (a) which deals with the family home provides that a court may confer on one spouse the right to occupy the family home or make an order directing the sale of the family home. This subsection seems to be open to the interpretation, because of the use of the word "or", that a court will be able to make one or other of these orders but not both. In other words, it will not be able to order the sale of the family home and confer the right on one spouse to occupy it until such time as it has been sold. That is only one interpretation. We should take the opportunity while we have the Bill before us to iron out any problems.

Section 18 sets out a wide range of considerations which should be taken into account by a court in deciding whether to make ancillary orders such as property adjustment orders, lump sum orders and periodical payment orders when granting a decree of divorce. The 1995 Act contains a similar section in the context of a decree of judicial separation. There is, however, a significant difference between the two.

When granting a decree of judicial separation a court may not make an order for the support of a spouse who deserts the other unless it would be unjust not to do so. In other words, there is a special onus on a deserting spouse to justify the making of an order for his or her support. In the case of divorce there does not seem to be any provision which will allow a court in deciding whether to make support orders to take desertion by the spouse seeking the order into account.

While there is a provision which allows a court in both judicial separation and divorce proceedings to take the conduct of a spouse into account this does not seem to remedy the matter. Will the Minister explain why it is necessary and desirable to treat desertion differently in judicial separation and divorce proceedings? The effect of this distinction is that a deserting spouse will be treated more favourably in divorce proceedings. There has been much talk about counselling etc. Section 18 might usefully be amended by the incorporation of a specific reference to counselling for spouses and dependent children as a result of the trauma of divorce. The break-up of a marriage is stressful for all involved. We are fooling ourselves if we think this can be overcome by providing mediation services. The hurt, anger, and trauma of marriage breakdown can continue long after a decree of judicial separation or divorce has been granted and is likely to be exacerbated in the context of an application by one spouse to vary the terms of maintenance or other ancillary orders.

Counselling may provide a means of alleviating this but the reality is that where a spouse has to live on a defined share of the other spouse's earnings the payment of counselling fees will lose priority. If the court, however, could order that counselling fees payable in respect of one spouse or dependent children were specifically the responsibility of the other spouse it is more likely that counselling which is so necessary will be availed of.

The Minister thanked everybody involved in the pensions area for their input. When we were briefed on the Family Law Act we were mesmerised by its provisions dealing with pensions. The pension provisions in this Bill are reasonably straightforward. A court will make the appropriate order and the actuaries will calculate the value of the pension fund. The spouse concerned, the wife in most cases, will not have the right to leave the moneys apportioned to her in the existing pension fund. This will rest with the trustees. The point has been made that they may decide to move the moneys, at considerable expense, by way of what is known as a buy-out bond. Apparently, only 20 per cent of the population have their own pension funds. It is most likely, therefore, that the person concerned will have to purchase an insurance contract or a buy-out bond. This is quite expensive. I ask the Minister to reflect on this point before Committee Stage.

The Law Reform Commission highlighted the need to properly research marriage breakdown. We need to know, for example, the extent to which maintenance orders are being complied with and how effective are existing enforcement measures. In some cases they are ineffective. In the absence of research we are reduced to making policy and allocating resources in a vacuum. A notable feature of the divorce debate was that, while both sides made free use of statistics compiled in the USA, Britain and the rest of Europe, there was a dearth of reliable information about what was happening here.

While we have come a long way in recent years in addressing our social problems, we should not make the mistake of thinking this work is complete. The House must keep the operation of the new family law regime under observation. It would be a great help if we could rely on factual rather than anecdotal evidence in so doing.

Focusing on the needs of families and especially children in cases involving marriage breakdown or divorce is a primary concern of those who support the introduction of divorce. It is also a primary concern of those who do not favour its introduction. There is a need to avoid marriage breakdown by developing comprehensive programmes dealing with relationships and family life. This cannot be legislated for and will involve a huge educational process. We must challenge the idea that we have always been a pro-family and prochildren society. There was no idyllic Ireland. We are living in a complex society where the pressures are intense. That is what we have to cope with. The introduction of divorce and the right to remarry for many thousands of people is a humane and necessary reaction to reality within society. For that reason and many others I support this Bill.

(Laoighis-Offaly): I appreciate the opportunity to contribute to this debate. The Minister, Deputy Taylor, and Deputies Woods and Keogh reflected the relatively measured and mature tone of the debate in the passage of the referendum legislation and of the campaign waged before it.

Those of us involved in the 1986 campaign found this campaign a far more rewarding experience as people, whichever side of the fence they were on, by and large took a measured and mature approach to it. The extremists were less extreme or there were fewer than in 1986. People were more honest about identifying problems and trying to identify solutions to them. We may have differed on the solutions but the campaign was conducted in a far more measured tone. That is very good for the country.

In recent years we have been particularly aware of the need to promote tolerance, understanding, acceptance of diversity and dialogue between people in Northern Ireland, between the two parts of this island and between this and our neighbouring island. The fact that we were able to conduct our debate in a relatively civilised way shows that we are growing up and beginning to put into practice in our own jurisdiction what we have been preaching to those in another jurisdiction for many years.

I am aware that this historic occasion is taking place in the shadow of yesterday's dreadful events. I do not wish in any way to minimise that happening or the response of this House to those events but I am pleased that this day has come. This is the first time a measure has been introduced by an Irish Government to allow Irish courts to grant divorces.

A relatively liberal dispensation of divorce was allowed in Ireland under the Brehon laws. That provision was uprooted on the imposition of English law. Until the 19th century in England the only provision for divorce was by the introduction of a private Act of Parliament. The English law changed in the 19th century but that provision for divorce by private Act of Parliament continued in this State up to 1937. A number of private Bills were introduced although I do not think any of them passed. Attempts were made on a number of occasions to change Standing Orders to make even the introduction of these Bills more difficult. It would be unsatisfactory in this day and age to have to bring individual cases of marriage breakdown before Parliament for adjudication.

Today is the first time since 1937 we have had any provision for divorce and it is the first time that Irish courts will be given jurisdiction in divorce matters. I compliment the Minister on this, and all those in previous Governments and those outside this House who have worked over the last number of years to address the increasing and unfortunate incidence of marriage breakdown. We can analyse why the level of breakdown was not greater in the past. We know there are many contributory factors. People had in some cases less sense of their own individual identity and the options available to people for economic independence were far more limited. However, the situation exists today, we have to address it, and we are doing so.

I have been reminded somewhat ironically, particularly in my own constituency during the campaign, that as the most recently married Member it might appear inappropriate that I speak about divorce, but we all recognise that many people, including members of our families, our friends and neighbours find their marriage has, unfortunately, broken down without any prospect of reconciliation. The people, if narrowly, decided that provision should be made to put a civilised, decent and legal end to long dead relationships and to allow people, if they wish, the right to a second chance.

I was interested in Deputy Keogh's comments, the members of her party in my constituency were extremely active in support of the campaign for the introduction of divorce for which those of us leading the campaign were very thankful. At the same time, some of her criticisms here today were a little petty and I am sorry she is not here to say this to her face. Some of her comments reminded me of the hurler on the ditch.

Nowhere in their programme for Government between 1989 and 1992 did the Progressive Democrats set out in a comprehensive fashion what measures of family law would be enacted as this Government and the last did. Nowhere did they commit themselves to enacting legislation on divorce as part of the programme for Government. The Deputy criticised the lack of services in the courts, the inadequacies of the mediation and counselling services, without recognising that the Minister has made huge strides in improving these services.

Deputy Keogh has not told the people that, whatever the present shortcomings of those services, they would have no hope of improvement if her party get the opportunity to implement the spending cuts of £2 billion it promised the electorate. She should be honest with the electorate on this issue. Both this Government and the last — the Labour Party was party to both — enacted a comprehensive programme in the lead-up to the referendum. We learned the lessons of 1986 when it was attempted to introduce the measure in isolation.

Following the introduction of various measures such as the White Paper on marital breakdown and legislation dealing with judicial separation, family law, maintenance of dependants, civil legal aid and domestic violence, the Government put a proposal before the people and that was the correct way to do it.

I compliment the Minister, Deputy Taylor, on his handling of this issue. He was criticised by people inside and outside this House for being too cautious. About 18 months ago Deputy Michael McDowell, in an article in theSunday Independent, said that the Minister and the Labour Party would be incapable of bringing in legislation on divorce. The Minister has shown that his measured approach has worked. It has reflected the genuine concerns of people about the need to protect and support the family, as well as the need to support those marriages in difficulty which can be saved and to help people when their marriages break down through reconciliation if possible, through mediation and a legal settlement, if that is the option, and if necessary by allowing those people involved to make a fresh start.

The Minister has taken action in legislation to raise the minimum age of marriage from 16 to 18 years. He increased expenditure in this area, including the large increase in grants for marriage counselling and the availability of the mediation service. In my constituency CMAC, now Accord, is in receipt of substantial Government funding. Our part of the country suffered from an almost total absence of such services until the Minister came in and the Department of Equality and Law Reform was established. People in my constituency had to go to Athlone, Carlow or Waterford for services. Legal aid services are now available through the law centre in Portlaoise and in the autumn will be available in County Offaly on a full-time basis through a new centre in Tullamore. I compliment the staff in those centres whose main area, though not the sole area, of operation is family law. It is one of the main areas where I have seen them help people on the ground. While the Minister, Deputy Taylor, is reserved in a number of ways——

(Laoighis-Offaly):——this list of accomplishments will stand as a great testimony not only to his efforts to ensure that those who need divorce can avail of it but also to ensure that a wide range of legal services and supports is available for families throughout the State. His judgment in putting a constitutional amendment before the people was justified. Some Members criticised that, saying it should be a matter for legislation. The people are cautious in this area and it was important to reassure them that if they allowed limited provision for divorce the basic conditions would be set out in the Constitution and that any proposed variation in those conditions would have to come back to them for further adjudication.

I pay a further compliment to the Minister on the manner in which he conducted himself during the divorce campaign and particularly on the time he spent in the constituencies throughout the country. The 1986 campaign was very much city based, with efforts being made in rural constituencies to support a yes vote. The Minister showed by the amount of time he spent launching local campaigns, visiting local areas, participating in local radio discussions that he was able to meet the people at their level, discuss their concerns and explain to them in a measured fashion why this was necessary. His efforts during the campaign played no small part in ensuring that the vital extra votes were won.

I wish to make a number of points in relation to the Bill. The basic rules as set out in the Constitution are restated. The people decided to allow a right of divorce but on very limited grounds. Efforts are being made in other jurisdictions, which had more liberal divorce regimes from the 1960s and earlier, to backtrack on some of their divorce provisions. They now realise that their divorce legislation also created many problems. We have seen the recent controversy in England concerning changes in their divorce law. It is important to compliment the people on adopting this measured, reasonable and limited approach.

This comprehensive legislation covers many of the issues raised during the 1986 campaign, many of the issues that have arisen since and many of the issues that arose in the 1995 campaign. It has codified and simplified matters in the sense that it is open to judges to make orders under this legislation in respect of many of the other areas of family and child law. A law is only as good as the people who implement it. We are talking about the judges who will administer it in the courts, the lawyers who will be consulted by people who are thinking of embarking on divorce proceedings and most importantly the spouses. I would agree with Deputy Keogh that we should try to encourage people to take as much responsibility for this process as possible. The Minister has gone as far as he can in legislation. I welcome the provisions whereby couples must be made aware of the possibilities for reconciliation and mediation and of the necessity for lawyers who are presenting cases in court to certify to the court that they have made their clients aware of these options. It is important that all involved realise it is not just a formula. I would encourage any couples who will be taking proceedings under this legislation to avail of the existing services.

Following enactment of the Bill the courts will have wide powers to decide on almost all issues relating to divorce. Those powers can be better used if the couple involved present an agreed case to the court for adjudication or settlement. We have seen this already in the case of judicial separation. Given his legal background Deputy O'Dea would be more familiar with this. As an ordinary Deputy dealing with constituency matters I have come across cases where people have succeeded either on their own or with the assistance of a lawyer or another person in agreeing all or almost all of the terms of their separation. I hope this type of responsible and mature approach will be encouraged by all concerned in this process and that people take control of this for themselves. This is not always possible, especially where relationships have broken down, where people are not on speaking terms, where one party has mistreated the other etc. We should be vigilant to ensure these provisions do not become a legal empty formula.

If this law is to be implemented improvements will be needed in our courts, in the Judiciary and in our facilities. I intend to take this matter further with the Minister for Justice. We all realise that overhauls in this area are badly needed. That is not the responsibility of this Minister but the equality of the operation of this legislation will be affected and influenced by the quality of the facilities available to the people who present themselves to the court for divorce.

Part III of the Bill is comprehensive and allows for various types of orders to be made — orders in regard to property adjustment, pensions, insurance etc. All reasonable attempts must be made to make financial and other provisions for the dependent spouse and children. Section 18 is an indication that the Minister has taken account of many of the concerns raised during the debate. The third basic condition for the granting of a divorce enshrined in the Constitution is as follows:

such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law ...

That is a general statement which is open to wide interpretation. I welcome the fact that the Minister has set out in section 18 (2) a number of other specific criteria that must be taken into account by the court in deciding on orders under the previous sections. The specific criteria in section 2 relate to matters such as the spouses' income, earning capacity, property and other resources, likely future financial needs and obligations, age and conduct of the spouses and accommodation needs. The court must also take into account any contribution made by either spouse to the financial and other resources of the other spouse and any contribution made by either of them to looking after the home or caring for the family.

We are not introducing a fault based system but a system of divorce which is based on the fact that the marriage has been over, and irreconcilably so, for several years. Many people were concerned that some aspects of the behaviour of either spouse should be taken into account by the court in deciding on matters before it, in particular in relation to settlements. I am happy that those criteria have been spelt out by the Minister. It is important that the contribution of women who stayed at home to raise their families will be taken into account in any decision.

While the conduct of spouses is implicitly taken into account by courts in judicial separation cases, it is important that the legislation is explicit in this regard. The Minister recognised that people wanted this provision included in the legislation.

I am pleased to have had an opportunity to contribute to this debate. While I accept Members have a right to table amendments on Committee Stage, I hope it will not be necessary to amend the Bill because we published a draft of it when the referendum was put to the people. As far as possible, we should adhere to the measures presented to the people at the time.

I welcome the Bill because I enthusiastically support the principle that parties to a marriage that has irretrievably broken down should be entitled to remarry, provided proper safeguards are in place. While I am pleased our views are reflected in the legislation, it does not represent the totality of the Fianna Fáil position. We have put forward detailed proposals which the Government has undertaken to implement and we will observe it closely for the duration of its term to ensure it does. If not, Fianna Fáil is committed to implementing its five year plan if and when we return to office.

I wish to depart from the restrained tone in which Deputy Gallagher spoke about this matter. Members who support the principle of divorce are extremely fortunate to be here today discussing the Bill because the Government resolutely, for reasons best known to itself, closed its ears to all arguments and entreaties made at the beginning of the referendum campaign about the inherent lack of fairness in spending taxpayers' money to finance one side of the debate. That approach was fraught with danger and, in effect, the Government played Russian roulette with the referendum. Certain aspects of the Supreme Court judgment in the Hanafin case are less than compelling. If I understand it correctly, it implies it is impossible to say whether advertising has any effect on those to whom it is addressed.

That proposition will come as a major surprise to the multibillion pound advertising industry. If the referendum had been defeated we would have been plunged back into the millstream of another referendum which would have been infinitely more devisive, may have been lost and those whose marriages have broken down would continue to be assigned to a legal limbo. However, the matter has been decided and we are now discussing the relevant legislation. The people have made their decision and the courts have decided the referendum was properly and legally held and we should now debate the details of the legislation.

How does the Bill measure up to the stated objective of all parties? It is our constitutional obligation to protect and preserve the family unit in so far as practicable. How does the Bill serve the children, the silent victims, of marriage breakdown? How does it meet the Government's stated objective of allowing a couple who can no longer live together to have their marriage dissolved and their affairs settled by the court in the most reasonable, logical and dignified manner possible? As the principle has been accepted, those are the matters we should discuss at this stage.

I have already received representations on the question of variation, particularly regarding property, financial compensation orders and so on. People who have already gone through the judicial separation process or agreed a deed of separation to settle their affairs can go back to the court for a variation. In the case of a deed of separation, if one spouse cannot get the other to agree to vary the deed or draw up a new one, a judicial separation can be sought. People who have got a judicial separation can go back to the courts and request a variation of the terms of the property settlement and so on. I accept that, in practice, this rarely happens. People do not want to go through the long delays and incur the additional expenses which characterises family law cases. They simply cannot be bothered going back to the court to get an extra share of property or additional financial compensation. However, people regularly go back to the courts in respect of maintenance payments.

A couple judicially separated and seeking a divorce can ask the court to vary the property settlement of the judical separation. Grave concerns have been expressed in this regard. While people generally do not go back to the courts to seek a variation, judicially separated people seeking a divorce will go to courts in any case and their solicitor would be obliged to advise them that they have the right to ask the court to vary any property settlement already made as a result of a judicial separation application. Solicitors may tell their clients that even though they have secured a certain amount of property, they have the right to look for another bite at the cherry when they go to court seeking a divorce. While I am not opposed to the principle of variation, the legislation should state that applications for variation will be considered only in the most exceptional circumstances, where there is compelling new evidence.

Section 20 gives the right to parties to a divorce whose affairs have already been settled to go back to the court to seek a variation as often as they like. In so far as property is concerned, the legislation should state explicitly that people can seek a variation only in exceptional circumstances. While this may have been the draftsman's intention, the legislation should be more explicit in that regard. It states that a person who has already secured a property settlement can get a variation from the court if the court considers it proper having regard to any change in the circumstances of the case and to any new evidence. That is weak. As far as new evidence is concerned, it should be evidence which could not be produced at the time of the original application for a divorce at the very least. The court can also grant a variation at the behest of either of the spouses or the spouse who has remarried, which is fair. It can also vary a property settlement, a financial compensation order or whatever at the behest of anybody who has, in the opinion of the court, a sufficient interest. What does that mean? It is too wide and it should be confined to dependants or tied down more narrowly, but I will discuss this in detail on Committee Stage.

Section 16 allows a divorced spouse who has already got a property settlement, a property adjustment order, financial compensation, a lump sum payment or whatever to go back in the event of the death of the spouse against whom they got that order. I say sincerely to the Minister, in view of representations made to me and my consideration of the matter, that this should only apply in the most exceptional circumstances. I accept the legislation is drafted to take into account the rights of the spouse of the person who dies and children of that relationship, etc. It is extraordinary that section 16 states that this right will only be granted "if it was not possible to make proper provision for the applicant during the lifetime of the deceased spouse." If it was not possible to do so, why was the divorce granted in the first place? Surely, section 4 (1) (c) makes it clear that a divorce cannot be granted unless the court is satisfied that proper provision is being made.

I would like to raise a query in relation to section 16 (6) which puts a further obligation on the personal representative of the deceased spouse in such a situation to make a reasonable attempt to bring the death to the notice of the divorced spouse. This onus should not be put on the personal representative. We live in a small country and the onus should be on the person involved. What sanction will apply if it is established that the personal representative did not make a reasonable attempt to contact the spouse of somebody who has died with a view to their coming back to look for another share of the property? If there is no sanction, why place an obligation on somebody? The sanction, I presume, is a civil one in that they can be sued. How will it operate in practice?

If the personal representative does not bring this to the notice of the spouse of somebody who has died, the time limit may elapse and the spouse who could have brought a case may suddenly discover that they could have done so had they been informed. What will be the sanction of the personal representative who made no effort to bring this to their notice? Can they sue the personal representative? What would the measure of damages be? Will the court have to calculate what the spouse would have got from the estate if they had been informed and had brought a case in time? Would that be the measure of damages against the personal representative?

This represents a further onus and, therefore, a further disincentive for people to take on the job of being a personal representative. The Minister will be aware that at present a personal representative can be secondarily accountable for capital acquisition tax, which is not a fanciful thing. I know of cases where personal representatives have been forced to pay capital acquisitions tax. A recent change in social welfare legislation has made a personal representative liable if the estate is distributed and it is found that money is owed to the Department of Social Welfare. This is a further onus on the personal representative and a disincentive to act as such. If people refuse to act as personal representatives, everyone will have to resort to the banks and to what are known as trust corporations which will be to the detriment of the estate and its beneficiaries because their charges are very onerous.

Section 34 (6) provides that in the event of divorce proceedings each spouse must give such particulars of his or her property as may be reasonably required. That will have to be changed. In the event of divorce proceedings either party to the divorce should be obliged by law to give details of all the property in his or her possession or ownership. I found in practice that it is sometimes extremely difficult to get people to give a proper account of what they have when marital breakdown proceedings are taking place. Yet the Legislature is giving these people a loophole. I see no logic in such a provision. I cannot imagine what property owned by a spouse being sued for divorce would not come into the reckoning. It is appalling that such a person should be given the right to decide what may be reasonably required. In such circumstances, each party should be obliged by law to give details of all the property in their possession, ownership or, at least, in their beneficial ownership.

Section 4 (1) (a) puts an obligation on the parties to be living apart which is also written into the Constitution, so I cannot say too much about it. Will the Minister state what proofs will be required that this condition has been met? Section 5 (2) obliges a solicitor to discuss mediation, reconciliation or counselling. Deputy Gallagher was much taken with that and he said it was a most revoluntionary provision and it helped to enhance and preserve families, etc. What he does not know is that it is a repeat of a similar provision in the Judicial Separation and Family Law Reform Act, 1989. In practice, it has proved to be the most harmless piece of cosmetics imaginable. I know some solicitors who have encouraged parties to litigate, while at the same time submitting the ritual certificate saying that they advised them about counselling and mediation. There is no sanction against a lawyer who does that; it is one person's word against another. I know of solicitors who actively encouraged people to proceed to litigation and who submitted a certificate to say they told them about mediation and advised them about reconciliation.

It would be more logical to have something like a compulsory cooling off period after such advice is given to ensure they had applied their minds to the question of reconciliation, mediation and counselling. Deputy Woods made a good suggestion, that a provision should be included in the Bill. We will table an amendment to this effect on Committee Stage, that is, that there should be some type of compulsory mediation in advance of divorce proceedings or the court making the final decision.

Section 11 (6) (a) deals with the question of attachment. Apparently, it is confined to people who have earnings as defined by the 1976 Act and, as far as I know, that is confined to PAYE workers. I do not see why it should be the case. It should be extended not only to people with earnings but to the self-employed who receive income which can be attached. In many cases, self-employed people are in receipt of income, wholly or partly, which can easily be attached. For example, the Revenue Commissioners applied attachment orders to creamery cheques payable to farmers in relation to tax owed. It worked very powerfully and the Minister should consider this in relation to the self-employed. Attachment should be automatic or, at the very least, where there is a record of non payment; there should be no loopholes in this regard.

Section 12 (7) provides that a property adjustment order will not affect the family home in which either of the spouses who has remarried is residing, which is a good idea. However, a similar provision is not included in the judicial separation Acts. I envisage circumstances in which the presence of this in the divorce legislation and its absence in judicial separation legislation might encourage parties who might have been satisfied with judicial separation to look for a divorce because in most cases, as anyone who has dealt with separated people, particularly women, will know, the question of ownership and occupation of the family home is often the thing who looms largest in their minds.

I differ radically from Deputy Keogh in relation to prenuptial agreements. The Minister has refused to say if they are effective, but he can make them effective or ineffective by including a provision in the Bill. I am totally opposed to prenuptial agreements. People who do not draw up prenuptial agreements, those who are not wealthy and who do not have property to justify such an agreement, are subject to the jurisdiction of the court. Is it possible to avoid all the panoply of maintenance orders, financial compensation orders and so on by the simple device of drawing up a prenuptial agreement? In the case of the ordinary person who does not draw up a prenuptial agreement or does not have the property to justify such consideration, a settlement may be varied as often as the other spouse wishes. Even death is not a release because the other spouse may make a claim on the estate.

If prenuptial agreements are effective the rich, who as Scott Fitzgerald said are different, will be even more different because they will be allowed to write their own ticket, which cannot be varied. There is no logic in the provision where a decision of the court on property disposition can be varied in future if circumstances change. I ask the Minister not only to clarify the position relating to prenuptial agreements but to write a provision into the legislation stating that prenuptial agreements are null and void.

I had hoped to raise a number of other technical matters, particularly relating to pensions and tax, but unfortunately time does not permit me to do so and I recognise the right of other Members to contribute. I ask the Minister to take on board the technical matters I raised, which can be discussed in greater detail on Committee Stage.

I take this opportunity to pay tribute to and congratulate my colleague, Deputy Taylor, Minister for Equality and Law Reform, on the professional manner in which he conducted the successful referendum campaign and ensured this legislation has come before the House.

When the Labour Party entered Government with Fianna Fáil in 1993 we ensured that theProgramme for a Partnership Government included proposals for a major programme of family law reform, which would include a referendum on divorce. As well as appointing a Minister for Equality and Law Reform we said we would pursue a broad programme of institutional, administrative and legislative reform aimed at enhancing the rights of women. With the formation of the Government of Renewal, that overall philosophy has been maintained.

In its programme the new Government promised that a referendum to remove the constitutional ban on divorce and remarriage on the basis of irretrievable breakdown would be held in 1995. It stated that the Government and the parties would recommend a "yes" vote in the referendum and that in advance of the referendum a comprehensive paper would be published indicating the text of the amendment proposed by Government and addressing issues such as the protection of children, taxation, social welfare, inheritance laws and pension entitlements. We said we would complete the steps necessary to ensure that all dependent spouses and children would be fully protected, that the family mediation service would be strengthened and expanded and that family courts would be strengthened.

That overall programme for the protection of the family and the divorce referendum had all-party support. All political parties recognise that marriage breakdown has become an unfortunate reality of life and that the rights of children and dependent spouses must be considered. The Government and every political party represented in this Parliament recognise the family as a fundamental part of society and we are committed to legislation designed to help families. We recognise that despite everyone's best efforts relationships can and do break down and that the absence of divorce has not prevented marriage breakdown.

More than 70,000 people are in marriages that have broken down and many would like the opportunity to remarry. Up to now, however, our Constitution and laws have failed to give legal recognition to the irretrievable breakdown of marriage. In reality, we had legal remedies equivalent to divorce in every respect except one, the right to remarry. In view of the widespread evidence of marital breakdown and the suffering of those who endured it without means of re-establishing themselves in society, it is timely that this legislation has come before the House. The Government recognises the family as a fundamental part of society and is committed to legislation designed to help families. It set up a Commission on the Family to advise on family issues in the context of a changing economic and social environment. Notwithstanding increased Government support, however, marriage breakdown is still prevalent and increasing.

Those of us in favour of divorce have based our case on a number of factors, particularly the existence and evidence of marriage breakdown in all social classes and in all parts of the country, urban and rural; the need to remove the sense of isolation and insecurity felt by those whose marriages have failed, the importance of ensuring the dignity and freedom of the person whose marriage has failed to giving them the choice of remarriage if they wish, the desirability of giving full recognition to the growing number of relationships already entered into by persons whose first marriages have failed, the need to correct the injustice and double standards of our laws which permit Church annulments while not recognising remarriage and the importance of having family laws which correctly reflect social realities so that they command the respect of people in the community.

The anti-divorce lobby argued that the removal of the constitutional ban on divorce would seriously damage children, but that is nonsense. There is no evidence that children of divorced parents fare better or worse than children of parents who are separated. Research has shown that marriage breakdown can damage some children, and in that context it would be honest to say that it is the process of marriage breakdown rather than subsequent divorce which might damage children. It must be remembered that marriage breakdown does not happen in the court room, it happens in the home and in the heart. The availability of divorce does not cause marriage breakdown.

Marriage breakdown is always devastating for those concerned. When a marriage breakdown cannot be retrieved many see divorce as the beginning of a healing process, a legal statement whereby people can get on with their lives in a forthright and mature manner. There is strong evidence that marital breakdown can be made less stressful for children if it is handled in an open and responsible way and if it involves sensible arrangements about custody and access. In an effort to address this issue and protect children in marriage breakdown, substantially increased funding has been provided for counselling and mediation services. Obviously our overall objective is to help parents to resolve their differences or, if they cannot, to help them manage their conflict in a way that is least damaging to children.

Central to the Government's position on divorce is the need to protect the family and the institution of marriage while at the same time providing remedies for the increasing number of cases of irretrievable breakdown. Divorce in other countries is available after only short waiting periods, but this legislation provides for a substantial separation period. Spouses must have lived apart for a period or periods amounting to four out of the previous five years before applying for divorce. That can hardly be suggested as the introduction of a divorce culture. It must be remembered there cannot be any change in such conditions unless and until the people decide to make a change in another referendum.

Over the past ten years successive Governments introduced many changes in the structures relating to family law. It is clear that throughout that time the process of reform in family law could not be complete without addressing the issue of remarriage. The only remaining issue, following all the legislative and administrative changes of the past ten years, was whether people whose existing marriages had irretrievably broken down should have the right to remarry.

I and the majority of people on this island are convinced that to continue to deny such a right would represent a grave injustice to many thousands of individuals. On 24 November last the people exercised their democratic right to amend the Constitution to allow for the introduction of this civil right.

In its preparation for this legislation, the Government sought to take into account its duty in relation to the institution of marriage and the family, and particularly the rights of children. In essence, the Government has balanced, to the best of its ability, the needs of a society in which the family has always been central and the needs of many thousands of people trapped in the pain of failed marriages.

The Bill gives legislative effect to the amendment of the Constitution approved by the people in the referendum of 24 November last and it clearly sets out, in line with the constitutional provisions, the criteria for obtaining a divorce. It also contains safeguards to ensure that both parties are aware of alternatives to divorce proceedings and to assist attempts at reconciliation.

The nature of family life in Ireland has changed dramatically over the past 30 years. The immense social, cultural and economic changes since the 1960s have altered family structures. Today, the reality is similar to that of our European partners. That includes a falling marriage rate, an increase in the number of children born outside traditional structures and in the incidence of marriage breakdown.

Many people wish to ignore these changes and bury their heads in the sand. However, a society concerned about the well-being of its children and its family structures has a duty to respond to these changes which obviously necessitate ongoing reform of our legal system and social services to accommodate the evolving nature of family life. The only just and mature response to marriage breakdown is to provide legislation for divorce so that separated people have an opportunity to begin again.

Divorce is a civil right and it is incredible in a modern society that people were forced to be legally tied to a marriage that had long ceased to exist as a loving and supporting relationship. Divorce provides people with the opportunity to start a new life and bestows on them their full rights as individuals.

We already have judicial separation and the only difference between judicial separation and divorce is the right to remarry. There is no lack of compassion and humanity in Irish people and I believe the public will welcome this legislation. Obviously a sizeable number of people are against divorce because the Catholic Church is against it, but Ireland is a changing society and more people are recognising that many citizens practice other religions or do not have any religion.

Allowing everyone the right to divorce and remarry, if they wish, is a step towards the real Republic of Connolly and Pearse, a pluralist Republic that will unite Catholic, Protestant and dissenter. This legislation will help to create a progressive, honest, tolerant and more open society for all of us, one which will protect human rights and put an end to the mentality that social problems can be ignored rather than addressed.

Nobody needs to be reminded that this legislation has been a cause of much debate, controversy and deep upset in recent times. On reflection it is perhaps not surprising since the problem of marital discord and breakdown is one of the most painful issues in modern society.

When I spoke on the matter in the House prior to the divorce referendum campaign, I expressed the sincere wish that the debate should take place in a reasoned and informed manner with both sides putting their case with clarity and tolerance. Many contributors to the debate participated in such a manner but, unfortunately, the overall impression gained from following the campaign in detail was negative.

Any neutral observer would have been unlikely to gain significant insight into the likely net impact of introducing divorce. It is perhaps not surprising, therefore, that the electorate is split almost 50-50 on the issue of divorce. While the "yes" lobby might justifiably feel happy with the eventual outcome on the basis that a win is a win, it would be both undemocratic and damaging to society if the full concerns of almost 50 per cent of the country's voters were conveniently put to one side. Now that the electorate's slim verdict has been confirmed by the High Court and the Supreme Court it is vital that every effort be made to ensure family life is protected to the maximum degree possible.

Before addressing areas of particular concern to me in the overall divorce issue, I wish to comment briefly on marital breakdown. As legislators we must first and foremost recognise that the development of serious problems in any marriage is a personal tragedy for those involved. Consequently, any steps taken by the State must be motivated by serving their best interests to the fullest possible degree.

The main parties usually consist of the married couple and any dependent children. At the best of times it is an extremely difficult task to attempt to serve the best interests of all sides in a conflict. In the case of marital breakdown a wide variety of scenarios may present themselves. First, genuine and irreconcilable differences may develop between a married couple; evidence of incompatibility may have been present in the marriage at the outset.

Such circumstances may provide a certain degree of justification to those who have taken a lead role in securing the introduction of divorce, but what about the rights of the children in the marriage? They may complain, with a degree of justification, that their parents brought them into the world and gave them a precious family identity which they may see as being threatened by the prospect of divorce. Any legislative steps we take must incorporate provisions which protect the best interests of children in such circumstances.

The presence of either physical or mental abuse in the family is another reason given to justify the introduction of divorce. I believe many people who supported the divorce referendum did so because of this seemingly growing problem in our society. While it would be morally wrong to suggest an abused spouse and children should remain in the family unit in such circumstances, the legal termination of the marriage allows the abuser to participate in another marital contract which may result in more lives being damaged.

Even in circumstances which seem to justify the concept of legally dissolving a marriage, there is a definite down side to the introduction of divorce. Other domestic situations are affected by the availability of divorce. There is the extremely difficult case where one partner is anxious to dissolve the marriage while his or her spouse is equally hopeful of retaining the marital link. The human dilemma in this case is particularly acute since, in the absence of reconciliation, the outcome is likely to lead to heartbreak on the part of one partner. To make matters worse the differences in approach between the two partners to the marital difficulties is likely to provoke a further deterioration in their relationship and may force children to take sides with one or other parent. The Bill before us will frequently if not always lead to the eventual dissolution of marriage in such cases, regardless of the opposition of one spouse. This is surely not in accordance with either the letter or spirit of our Constitution which guarantees to treat the rights of each citizen equally.

Probably the most worrying question raised by the introduction of divorce is its effect on the nature of the marital contract. From being a lifelong commitment on the part of both spouses, the legislation before us clearly alters marriage to being a conditional social arrangement which may be unilaterally terminated without major difficulty by either party. While it must be accepted that a number of well meaning measures have been built into the legislation to prevent the reckless use of divorce, the sad reality is that such provisions are more likely to look comforting on the Statute Book than bestow real protection on the reluctant respondent in divorce proceedings.

Let us consider the implications of introducing divorce for a couple who are experiencing some difficulty in their marriage. They may make every effort to struggle through their problem towards an eventual resolution, and I do not doubt that many such couples will continue to work at their marraige irrespective of statutory changes in our family law. However, does anybody realistically suggest that a significant number of such couples will not be tempted to throw in the towel, in the knowledge that they may dissolve their marriage without too many legal difficulties? There is no doubt that many basically sound marriages will be needlessly lost with the introduction of divorce. In such cases the likely losers will be parents, children and the extended family.

A major loss in status for the institution of marriage will inevitably follow the introduction of divorce. Take as an example a young couple who have developed a good relationship and are considering marriage. Up to now the temptation to get married at an early stage has been tempered by the knowledge that marriage is a lifelong commitment. Consequently, at least one partner is likely to approach the matter prudently and insist on a longer period of preparation before marriage. Can anybody suggest that the same level of caution is likely to be exercised when both partners are aware that the marital contract can, if required, be of a temporary rather than permanent nature?

No matter what way one examines this legislation, there is undoubtedly much reason for grave concern at the likely intermediate and long-term impact of introducing divorce. Almost every scenario suggests that many people will be hurt by this fateful step. In framing the legislation, therefore, it is vital that every possible prudent safeguard against abuse should be built into its details.

What is contained in this Bill? Section 4, Part II, clearly specifies the grounds on which marriage may be dissolved by the courts. The three core requirements are that a couple must be living apart for at least four years prior to the commencement of proceedings, there must be no reasonable prospect of a reconciliation and, finally, such provisions as a court considers proper, having regard to the circumstances, will be made for the spouse and any dependent members of the family. I will briefly consider each of these requirements.

At first glance the requirement for a minimum of four years' separation prior to commencement of divorce proceedings appears to offer some degree of protection. On closer examination, however, it becomes increasingly likely that the provision is open to abuse. A couple who have been married for four years and have lived together for most or all of that period can be divorced irrespective of the rights of the children of the marriage. What mechanism can stop them colluding to overcome the living apart law with the minimum of effort? The situation in this regard is also by no means clear-cut in the case of a contested divorce. Disagreement under oath on the matter of living apart is often likely to come down to forcing the court to make a decision to accept one person's word against that of another. The first requirement is almost certain to be a cause of both difficulty and conflict in the legal processing of divorce cases. At the very least, it requires further clarification.

The second requirement regarding the need to show that there is no reasonable prospect of reconciliation seems equally vague and unsatisfactory. While clearly well intentioned, in practical terms can we expect this requirement to be of any value when one partner is determined to follow the divorce proceedings through to a conclusion for whatever motive? No matter how the respondent may show a desire and willingness to enter wholeheartedly into the process of reconciliation, such a positive attitude will have little if any currency in the face of a cynical application for divorce. To state otherwise would be flying in the face of reality.

A close examination of the third requirement can only lead to a mixed interpretation. It must be acknowledged that the provision comprehensively addresses the issue of marital well being in cases where the applicant has significant financial resources. However, it is likely that many applicants for divorce will be from middle, lower-middle or lower socio-economic backgrounds. Many are likely to be dependent on the State for their weekly incomes. In such instances, the family resources, if any, are likely to be exhausted by the legal costs associated with the case. While the various financial provisions of the Bill seem eminently fair and reasonable, in many instances they are likely to have little or no relevance for the majority of divorce cases which will be processed though the courts.

The net effect of the weak nature of these clauses is likely to be that a determined partner will be able to force divorce proceedings through the court irrespective of the wishes of his or her spouse. As a result it is certain that an increasing number of individuals, frequently women, will be divorced against their wishes. In such cases it is almost inevitable that other family members, especially children, will suffer from the bitter after effects of a contested divorce.

What is the likely overall impact on Irish society of implementing this Bill? It is clear from my contribution that I voted against the referendum. I believed that the case for divorce was not proven by its advocates during the debate. In addition to the reasons I have just outlined, I was fearful of the impact of divorce on the extended family. Consider the pain and upset that is certain to be caused to grandparents. They will not only lose all meaningful contact with a son or daughter-in-law whom they have grown to accept as a member of their family, but access to much loved grand-children may either drastically diminish or, in extreme circumstances, virtually disappear. Similar observations may be appropriate for aunts and uncles, especially those who do not have their own children.

In attempting to see some light in the midst of the clouds of divorce, one might reasonably look at the experience of countries with a similar culture to our own. It must be admitted that some positive findings have been reported, with many people picking up their lives after divorce and going on to form fulfilling and stable relationships with a minimum of hurt to all involved in the original family unit. I have no doubt that such outcome will be repeated on many occasions. However, the introduction of substantial change in our legal system must afford priority to the common good. In this respect a variety of research findings from other countries are anything but encouraging; clearly the opposite is the case. The general pattern appears to be that the introduction of divorce leads ultimately to between one-quarter and a half of all marriages ending in dissolution. An even higher failure rate is evidenced in the case of second and subsequent marriages. In particular women and children are seen to suffer grievously in the aftermath of divorce. Despite legal directives, the sad reality is that relatively few divorce applicants provide adequate material support for their former families to allow them maintain or enhance their previous standard of living. Much serious emotional and psychological damage is widely reported.

It would be unfair to suggest that many of the negative consequences of marriage breakdown are not already suffered by those concerned irrespective of the legal availability of divorce. To so assert would be to fly in the face of reality. What must we do now? No matter how many of us are unhappy with the outcome of the divorce referendum, it is a primary requirement of any democrat to accept the will of the people. Without ruling out the possibility of the matter being put to the people again, it is vital that we ensure that ever step is taken, in the precise wording of the Bill before the House and in the provision of additional resources, to protect the central role of the family in Irish life.

Much greater emphasis should be placed on the provision of conflict resolution skills within the curriculum of our formal education system and in the context of family support counselling services. It is crucial that the Government should move rapidly and effectively to ensure that the needs of the family are placed fairly and squarely at the top of its agenda. Not to do so would be a gross and insensitive insult to the expressed wishes of the electorate. No stone must be left unturned in ensuring that all possible steps are taken to provide real and effective support to couples experiencing the unfortunate trauma of marriage breakdown.

This Bill has been introduced to give effect to the result of the referendum on divorce held in November last. I voted against divorce, although I was in the losing side by a small majority. Our role today is to pass this Bill, giving real effect to the result of that referendum whether we like it or not.

I did not agree with many aspects of the debate on the subject. It was sad to observe how some people, particularly highly respected people like churchmen, bishops and priests, were shouted down by many, including Government Ministers, in a most illiberal and intolerant manner. The argument was won by highlighting and pushing individual sad cases rather than the common good of society.

While some people will benefit from the provisions of this Bill, I foresee many marriages being destabilised through their implementation. They may help the 4 or 5 per cent whose marriages have broken down but I contend the 95 per cent of present stable marriages will be put in some jeopardy.

This cult of individualism has gone too far. We need to engage in a reappraisal of where we are, where we are going, begin to talk about rights and wrongs, entitlements and responsibilities, the good of the individual versus the common good of society. I fear the introduction of divorce will undermine many stable marriages and inevitably have negative social consequences, as has been the case in many other countries.

While, of course, aware that some marriages do break down, I am against throwing in the towel merely because 4 or 5 per cent fail to adhere to the rules. On the international scene, it appears that the trend, at least in some countries, is against quickie divorce, against divorce overall making it all the more extraordinary that we should introduce rather liberal divorce.

I congratulate the Minister on his honesty in calling this Bill what it is — Family Law (Divorce) Bill, 1996 — having dropped the "right to remarriage" reference which abounded in the course of the referendum campaign. The entire campaign was run most unfairly by the Government. Had the gods been with the anti-divorce people and the weather been better in the west but not so kind in the east, there might well have been a different result.

Even the Supreme Court concluded that the admitted purpose of the Government campaign and its unconstitutional funding represented an interference in the conduct of the referendum. In all common sense it was a most unfair campaign run by the Government but the people have spoken and their word is final. That was more or less admitted in the court's judgment in the case taken by Mr. Des Hanafin when the judge more or less said that the remedy being sought by Mr. Hanafin was not against the Government which had committed the constitutional breach but rather to override and reverse the sovereign will of the electorate, as expressed. It would have been better had a means been found to rebuke the Government for the disgraceful, one-sided manner in which it campaigned, without ignoring the will of the people. The Government cannot be proud of the way it conducted the campaign, which was in breach of its constitutional obligations. Its action was deliberate, conscious, in the sense that it knew exactly what it was doing. Its campaign was designed to influence the electorate to vote in favour of divorce.

I should like to avail of this opportunity to record my thanks to all those within the main groups and in the many other smaller groups nationwide who fought against the introduction of divorce, being of the deeply-held view that it was against their beliefs. Nonetheless, the decision has been taken. When one looks back over the succession of church annulments and foreign divorces, one realises that pattern could not have continued indefinitely. With the benefit of hindsight we probably should have done something earlier to resolve the problem legally before it came to the matter of divorce.

Last year, when speaking on the original Bill, I suggested some form of registration or notification of second relationships, giving some legal standing to and recognition of second relationships without threatening existing marriages. Others have suggested that, when presenting oneself for marriage, one might be given two different options — marriage with the possibility of divorce or marriage without that proviso. I admit these are all thoughts on what might have been. The decision has been taken.

Mr. Des Hanafin's court case over recent months has been interesting. We owe him a debt of gratitude for having initiated it. It was extraordinary that the Supreme Court found him to be two-thirds correct but did not grant him victory. I always thought that if one had two-thirds of something in one's pocket, one was a winner but the court has its own form of logic and, in many ways, never ceases to surprise us.

It seems extraordinary that the expenditure of £500,000 on publicity during the referendum campaign could not have persuaded such a small number of people to change their voting intentions. I wonder whether the advertising industry remains shell-shocked that £500,000 was spent without yielding a different result. It has to be admitted that we public representatives often spend some money at election time endeavouring to influence people, but one questions the expenditure of such a large amount in the case of the referendum campaign since we cannot prove it had the desired result. Is it not a shameful fact that the Government, the body elected by the people to guard and protect the Constitution, in this case has been found to have acted in a totally unconstitutional manner? Does that not add to the public's general distrust of politicians? I will not attempt to answer that question.

I am aware that under the Judicial Separation and Family Law Reform Act, 1989, almost 4,000 couples have separated. In many respects in recent years the State has been involved in almost encouraging people to break up their marriages. I would like an analysis of all those separated people or those who described their status as "separated" on the census form. Many of my constituents pretend to be separated for financial reasons because the State in its wisdom has been favourable to them. It often pays people to pretend they are separated and that trend appears to be continuing. I can see another wave of such pretence with the introduction next year of the one parent family allowance. Such schemes are genuine, but they are being milked and abused by the wrong people because of the opportunity to do so. Now that the demand for divorce has been satisfied and it will be introduced, we should adopt a balanced view of family life and instead of encouraging people to break up their marriages, walk away from their responsibilities and pretend they are separated, we should encourage and reward those who keep their marriages and families intact.

The family is the basic unit of society and one consisting of two parents based on marriage is the ideal. The Government should not introduce any action or scheme that tries to water down that concept of the family or encourages people to walk away from what most of us would agree is the ideal family unit. We need a new appraisal of various Government social welfare, taxation and housing schemes that will acknowledge, encourage and reward the family that stays together rather than schemes which do the opposite as happened in recent times.

When this legislation is passed the country will not fall apart overnight. It will take five, ten or 15 years before we realise the mess we have foisted upon ourselves. What policy would the Government have adopted if the divorce referendum had been defeated? I am sure a campaign would have commenced the day after the referendum to hold another one in five to ten years. Irrespective of whether we are talking about social change, divorce or bail, if in ten years opinion polls show a significant number of people want another referendum on divorce or another issue, they should be given that opportunity. I hope that those who carried out opinion polls on divorce in the past will do so again in five to ten years when we will have had time to reflect on the impact of a divorce culture here. Such an opinion poll would ascertain people's views on divorce and if there was a large demand for another referendum, one should be held. I hold that view not only on divorce but on a wide range of issues because a referendum is the ultimate way people can exercise power in a democracy. During the divorce campaign there was much talk of giving people a second chance, but I hope that if the people want another divorce referendum, that will be possible.

This legislation will introduce divorce. What will happen then? Those with vested interests are already out looking for their pound of flesh. The legal profession and their runners are demanding an additional £10 million funding for legal aid and the appointment of additional judges. I wonder if divorce is being introduced to give genuine people a second chance or to create another bonanza for the vultures who fly around society willing to pick on the bones of other people's misery.

We have heard of the upset that will be caused by some people having to wait 12 months for divorce, for their relationship to be given another label of respectability. I am not an advocate of encouraging people to queue for anything, but there are many queues in society and a balanced approach should be adopted to them. While it would be Christian to give people a speedy divorce to allow them to pick up the threads of their lives and move on, I have many constituents who are on the waiting list for major heart surgery, one has been on the list for four years. If I were asked whether a person waiting four years for a heart bypass who is barely hanging to the threads of life or a person waiting 12 months for a divorce is more deserving of Government funding, my answer would be clear-cut. While a quick divorce would help a person to get on with his or her life, funding targeted at reducing the waiting list for heart surgery would help save people's life. If extra Government resources are available, there are many demands for them under different ministries. The needs of the legal profession and of those who wish to avail of divorce are not necessarily a priority and all other demands should not be pushed aside so that their demands can be fully satisfied. I am concerned that some of the legal profession appear to view the introduction of divorce as another beef tribunal bonanza.

If the Supreme Court judgment had rejected the will of the people it would have opened a can of worms, but it has sent out an unfortunate signal. It ruled that a win is a win and that the ballot box is everything. It is saying that the only rule that applies in an election is the rule of the jungle, the rule that dictates that the fittest will survive. It condoned any and all methods and gave recognition to the fact that a win is all that is important at the end of an election. We will be involved in another election next year and while many parties have agents and directors of elections who try to restrain members and urge them to play by the rules under fear of threat of sanction, the Supreme Court decided that in any future elections there are no rules other than the rule to win and the means are irrelevant. It is an unfortunate by-product of this issue and it may come back to haunt us in many other respects.

I accept the result of the referendum as I do not see how I can do otherwise. I suppose I should congratulate those who pressed for divorce. I admit I did not support it on this occasion or in the past. In any campaign there is only one winner and the loser must be gracious. The Minister said that the draft Bill was issued before the referendum and that significant amendments will not be accepted. My party spokesperson wishes to table a large number of amendments and I hope the Minister will be open to accepting some of them. I realise that the decision on the fundamental question put to the people in the constitutional referendum cannot be changed. If the matter is as simple as the Minister said and he cannot back down, the basic wording put to the people in the referendum should not be watered down. I have some news on the anti-divorce campaign which did not only begin now. It started before the referendum to define "living apart". If the Minister cannot accept any major amendments because he must accept the will of the people, neither should he adopt a tough approach by giving an integration which was not clear and not put to the people at that time. It may be possible, if one is living in a £1 million house on Ailesbury Road, for the husband to live in one wing and the wife to live in another. For most normal people it is not possible to love apart under the same roof. My interpretation of living apart is living under a separate roof. I am amazed and surprised that some people are campaigning for a different interpretation.

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